The Portland daily press., 1887-05-13
AN IMPORTANT CASE.
Judge Webb's Ruling Sustained by
the Circuit Court.

On the 14th of June, 1881, the United
States by COL George Thorn, Corps of Engi-
neers, U. s. A, entered into contract with
the Eastern Dredging Company of Portland.
Me-, of which A. r. Wright is manager. for
dredging 100000 yards of material In Charles
River, Mass. The contract provided that
the dredging should be done in such places
and in such manner as the United States
Engineer in charge should direct. that the
material should be removed by the con-
tractor and deposited in such place as should
meet the approval of the United States En-
gineer In charge, and that the bidder in
making prices for the work must consider
the vslue of the material for filling of low
grounds in the vicinity. The contract fur,
Their provided that the payments were to be
made monthly for the work as it progressed,
and that 10 per cent. was to be reserved by
the United States until the whole contract
was completed, to be forfeited in case of the
non-fulfllment of the same by the Eastern
breeding Company. And the contract fur
ther provided that if the Eastern Dredging
Company should fail to prosecute faithfully
and diligently the work in accordance with
the specifications and requirements of the
contract, then the United States through its
proper officers should have the right by CIV
ing written notice to annul the contract and
declare all money or reserved percentage due
the Eastern Dredging Company forfeited to
the United States that said contract was to
be completed on or before the 31st of Decem-
Der, 1881. Under this contract the Eastern
Dredging Company entered upon the per-
fnrmanaa IF ba md a.
1900 cubic yards, below Brookline
Bridge, in Charles River, and depos-
tied the material on the low-lands in
the vicinity of the work Operations
were then commenced by the company above
Brookline bridge, and continued until about
the 9th of October, when the company, on
account of its inability to find a suitable
place of deposit for the material, ceased op-
erations. On the 18th of March, 1882, the
company was called upon to resume work,
but being unable to find place of deposit
for the material, without transporting the
same below Brookline bridge, declined to
proceed under the contract; and ON the oath
day Of July, 1882, Gen. Thorn declared said
contract annulled and all money and reserve
percentage due from the United States for
1elted to the government The contract was
re-let by the government to John McDermott
OF New York, who went on and completed
expense TO the government, After the con-
tract was completed by McDermott, the
United States brought suit against the East
ern Dredging Company, claiming that there
had been breach OF contract and to recoy-
er as damages against the Eastern Dredging
Company the sum of SIS, 359.49 The case
was tried in the District Court, before Judge
Webb, at the last December term. 1t was
claimed by the Eastern Dredging Company
that the material dredged was to be deposit
ed on the low grounds in the vicinity of the
Work, and that the government in directing
the defendant to transport the material
down Charles river, below Brookline bridge,
and for a distance of several miles, and
through several drawbridges, had
thereby broken its contract and relieved
the defendant from all liability to further
perform the same; and it was further claimed
by the defendant that the plaintiff by annull-
ing the contract and declaring all money and
reserved percentage, viz: the sum of $462
forfeited to the government, elected to ter
inmate and annul said contract, and that
thereby all further obligations on the part of
tne defendant to the plaintiff were terminated
and that all rights of action on the part of
the government had thereby been waived.
Judge Webb instructed the jury that if they
found as matter of fact that the govern
ment did, on the oath day of July annul and
put an end to the contract and retained the
amounts due, the government could not re-
cover other damages for the non. performance
OF the contract after that time
Inc jury returned verdict for the defend |
ant and the plaintiff excepted to the ruling
OF the court. The case was taken bv the |
United States to the Circuit Court by writ of |
error and argued before Judge Colt at the |
present term. A decision has been rendered
sustaining the ruling of Judge Webb and his
term.
George E. Bird, District Attorney. appeared
for the United States and N. & III. b. Cleayes
for the Eastern Dredging Company.